Colorado Court of Appeals – Week of September 11

Sep 14, 2023 Denver, CO

By: Alan Schindler, Esq. and Anna Goldman, Esq.

Bertoia v. Denver Gateway LLC, 2023 WL 5439138 (Aug. 24, 2023)
Division II, Opinion by Judge Tow, Judge Furman, and Judge Johnson concur.
Decision: Reversed
Procedure: On appeal from District Court, City and County of Denver, Judge David H. Goldberg

Factual Background and District Court Holding:

Plaintiff appealed the district court’s order striking a notice of lis pendens, recorded as to real property titled to the Defendant, as a spurious document pursuant to CRCP 105.1.

Plaintiff filed her Complaint asserting CUFTA claims against Defendants to avoid a transfer of a purchase and sale agreement (“PSA”) for a property for which she claimed an interest. The transfer of the PSA was from the purchaser under the PSA to Defendant Denver Gateway LLC, which would step into place as the new purchaser. Plaintiff also recorded a notice of lis pendens on the property at issue. Defendant moved to strike the lis pendens pursuant to CRCP 105(f)(2). The District Court found that Plaintiff’s CUFTA claim would not affect title to the property, so it struck the lis pendens and required Plaintiff to pay Defendant’s attorney fees and costs in defending the suit.

Issue on Appeal: Whether Plaintiff’s CUFTA Claim Could Affect Title to Real Property when the Transfer of Title was Indirect.

Noting first the fact that Plaintiff’s CUFTA claim ultimately failed did not impact its decision, the Court of Appeals addressed the question as to whether the notice of lis pendens was spurious when it was filed, which turns on whether the CUFTA claim, as filed, affected title to the real property. Id. (citing C.R.S. § 38-35-110(1)). Before reaching its decision, the Court noted that the Supreme Court “broadly interprets what affects title to real property” and so “even litigation that does not seek to change ownership in any way but does involve a determination of certain rights [and liabilities] incident to ownership falls within the purview of the statute” Id. (citing Kerns v. Kerns, 53 P.3d 1157, 1165 (Colo. 2002)).

Before addressing the ultimate issue, the Court first held that the transfer at issue was made by a “potential debtor” and involved the transfer of an “asset”—i.e., a right to purchase the property. Id. citing C.R.S. § 38-8-102(2).

Next, the Court turned to whether the CUFTA claim could affect title to real property. The Court noted that the term “transfer” under CUFTA includes “every mode, direct or indirect…of disposing of or parting with an asset or interest in an asset.” Id. citing § 38-8-102(13). It then held that the transfer at issue did affect real property because “the execution of a PSA regarding real property vests equitable title to the property in the prospective purchaser.” The Court then underscored that if Plaintiff had prevailed on her CUFTA claim, the district court could have treated the substance of the transaction as a transfer of title from one Defendant to the other. Because the lis pendens was properly recorded, it could not have been spurious, and thus the Court reversed the District Court’s order striking the notice of lis pendens.

Reynolds v. Great Northern Insurance Company, 22CA1305
Division D, Opinion by Chief Judge Roman, Judge Freyre, and Judge Tow concur
Decision: Affirmed
Procedure: On appeal from District Court, Denver County, Judge Bruce A. Jones

Factual Background and District Court Holding:

Plaintiff appealed the district court’s judgment dismissing her claim against Defendant, an insurance company, on the grounds that it is barred by the statute of limitations found in section 13-80-103(1)(d), C.R.S. 2023.

Plaintiff sent Defendant a written request for insurance policy information following a car crash. Almost two years later, Defendant complied with her request. Shortly after Defendant’s compliance, Plaintiff filed a complaint in the district court. The district court dismissed the complaint, concluding that section 10-3-1117(3) expressly created a cause of action to recover penalties, so the one-year statute of limitations in section 13-80-103(1)(d) applied and began to run on the day following the statutory period allowed to produce the required disclosures.

Issue on Appeal: Whether the statute of limitations had started to run

The Court of Appeals addressed the question as to whether the statute of limitations had started to run on the day following the statutory period allowed to produce the required disclosures or when an insurer complies with the request. Id. Section 10-3-1117 imposes an obligation on insurers to disclose policy information to claimants within thirty days of the receipt of a formal written request. § 10-3-1101(2), C.R.S. 2023. Colorado imposes a one-year statute of limitations on actions for penalties. § 13-80-103(1)(d).

Under section 13-80-108(9), C.R.S. 2023, “[a] cause of action for penalties shall be deemed to accrue when the 7 determinations of overpayment or delinquency for which such penalties are assessed is no longer subject to appeal.” The statute expressly determines that the determination of delinquency is the thirty-first day after the written request is received by the insurer. § 10-3-1117(3). Therefore, a claim under section 10-3-1117(3) accrues on the thirty-first day after the insurer receives the written request, and the one-year statute of limitations begins to run on that day.

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Colorado Court of Appeals – Week of September 11

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